This article was authored by Michael J. Cole, Attorney Advisor at ACUS on detail from the Federal Mine Safety and Health Review Commission
Agencies promulgating rules often face substantial legal uncertainty regarding the validity of their rules, which exposes the agencies to the risk that reviewing courts may vacate their rules entirely and render superfluous their efforts. In response to these challenges, in 2017, ACUS undertook a project to evaluate several approaches that agencies can employ to mitigate the risk of courts striking down their rules.
Professor E. Donald Elliott of Yale Law School and Research Fellow Charles W. Tyler at Stanford Law School researched several approaches that agencies can take and wrote ACUS’s draft report for this project. The report describes how agencies often face inherent uncertainty about their rules’ validity on various procedural or substantive grounds, especially when they are attempting to introduce new regulatory programs, in which the legal, scientific, and economic bases for the rules may not have been previously tested in court.
The report further describes how the typical, default judicial remedy for a legally invalid rule is to vacate the entire rule. This means that the agency must go back to the drawing board, which requires it to redo much of its previous work. As such, the legal and economic risks associated with virtually any major rulemaking are often very high.
Based upon the responses that they received from interviews with agency officials, the report offers agencies a menu of available options that they can employ, before and after promulgating rules, to mitigate the risk of courts striking down their rules. For instance, the report recommends that agencies should solicit input from stakeholders on procedural issues and conduct litigation risk assessments early in the rule drafting process. Agencies can also include severability clauses in their rules, which will minimize the costs of judicial review insofar as they increase the probability that one part of a rule will survive. Agencies can also divide up their rules based on subject matter, which would further guarantee that the various aspects of a regulation are independent. In addition, agencies should ensure that a rule’s text and structure reflect the logical and practical relationships between a rule’s provisions, even in the absence of a severability clause. Agencies can, as appropriate, include fallback provisions in their rules or promulgate smaller, less costly rules as test cases. In such scenarios, courts will be more likely to separate the offending portion of the rules while leaving the rest intact, which will avoid many of the costs of total vacatur.
The report further recommends that, when appropriate, agencies should proactively argue to courts that they should issue limited remedies, if courts find rules to be invalid. Specifically, agencies can argue that the provisions of a rule should be severed, that an infirmity was harmless error, or that a court should remand a rule without vacating it. Finally, agencies may benefit from judicial policies that allow agencies to submit briefing on remedies without fearing that a judge will infer that an agency is uncertain about its positions on the merits. The report concludes that agencies may want to employ these approaches to minimize their costs for potentially invalid rules and reduce the likelihood of any wasted effort.
The first Committee Meeting, at which the Committee on Judicial Review will discuss a draft recommendation based on the report, is scheduled for Friday, March 16, 2018 at 1 pm. The second Committee Meeting is scheduled for Wednesday, April 11, 2018 at 1 pm.
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